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Kesuvos, 82

KESUVOS 82 - dedicated by Mrs. Rita Grunberger of Queens, N.Y., in loving memory of her husband, Reb Yitzchok Yakov ben Eliyahu Grunberger.


QUESTION: The Mishnah discusses the status of the property of a man who dies childless, leaving his wife as a Shomeres Yavam who must do either Yibum or Chalitzah. Rebbi Meir says that the Peros (fruits) that have been harvested from the deceased man's fields are sold and land is purchased with the profits. That land is set aside for the Yevamah's Kesuvah. When Peros are still attached to the field, we evaluate the difference in the value of the field with Peros and the value of the field without Peros, and we purchase land with the amount of the difference. The Yavam eats the Peros of the land, and the land itself is set aside for the Yevamah's Kesuvah.

The Chachamim disagree with Rebbi Meir with regard to Peros that are no longer attached. They say that since the Peros are Metaltelin (mobile property), they are not designated for the Kesuvah unless the woman was holding them during her husband's lifetime. Regarding Peros that are attached to the ground, the Chachamim maintain that those Peros "belong to him" ("Shelo"), implying that the Peros are given to the Yavam and are not designated for the Yevamah's Kesuvah.

The Gemara is perplexed by this ruling. We know that any land left by the deceased brother is designated for the Yevamah's Kesuvah. The Yavam may not sell it (see Insights to 81b). How could the Chachamim say that it belongs to the Yavam?

Reish Lakish answers that the Mishnah should actually read "Shelah" -- the Peros "belong to *her*" and not to him. RASHI explains that according to Reish Lakish, Rebbi Meir and the Chachamim are not arguing with regard to Peros that are attached.

If the Chachamim in the Mishnah are actually saying that the Peros "belong to her," then why do the Chachamim discuss Peros that are attached to the ground in the first place? They are not arguing with Rebbi Meir on the matter!

Moreover, now that they are discussing the issue of attached Peros, if they are not arguing with Rebbi Meir then why do they word their ruling differently than Rebbi Meir? Instead of saying "Shelah," the Peros "belong to her," they should have said that the Peros are sold in order to purchase land from which the Yavam eats the Peros! (TOSFOS YOM TOV)


(a) The TOSFOS YOM TOV explains that the wording of the Chachamim and Rebbi Meir (until the point at which the Chachamim discuss detached Peros) is copied from the Mishnah earlier (79a). There, the Chachamim *do* argue with Rebbi Meir regarding Peros that are attached when they say that they "belong to him" ("Shelo"), and they do not say that the Peros are used to purchase land. The Tana of our Mishnah wrote our Mishnah with a parallel wording, as is commonly found in Mishnayos. He wanted the style of the Mishnayos to conform, even though it is not necessary to record the view of the Chachamim here with regard to attached Peros since they do not argue with Rebbi Meir. The only difference in this Mishnah is that here the Chachamim say that the Peros "belong to her" ("Shelah") and not to him ("Shelo"). This is what caused the Tana who authored our Mishnah to mistakenly write "Shelo" in place of "Shelah."

(b) The MAHARSHA answers that had it not been for Rashi's explanation, he would have suggested that there is indeed a Machlokes between Rebbi Meir and the Chachamim regarding attached Peros. Rebbi Meir holds that immediately upon the death of the husband we evaluate how much more the field is worth with the Peros than without them. The fruit that grows after that time is *not* evaluated for the woman and given to her, but rather the Yavam gets to keep it.

The Chachamim argue and say simply "Shelah," the Peros "belong to her," referring to all of the fully grown fruit. They hold that even the fruit that ripens after the death of the husband is also designated for the Kesuvah.

While this explains the wording of the Mishnah, it is not clear why this should be true. Since the Peros grew after the death of the husband, why should it be designated for the Kesuvah?

The TOSFOS RID explains in a manner similar to the Maharsha, but instead of saying that the Chachamim give the woman the Peros that ripen after the husband's death, he says that the Chachamim give only the fruit on the tree as they are at the time of the husband's death. The Chachamim differ with Rebbi Meir with regard to how the Peros are evaluated. Rebbi Meir says that we evaluate them by appraising the difference in value of the field as a whole with Peros and without Peros. The Chachamim say that we evaluate the value of the Peros themselves (if they were to be sold in that semi-ripened condition). Even though this sum will be slightly greater than Rebbi Meir's sum (see Rashi in Bava Kama 55b, DH Shamin), the Chachamim were not concerned that they were giving the woman slightly more than they might actually be worth, since land is purchased with that money and the husband eats the Peros of that land in any case.

(c) RAV ELAZAR MOSHE HOROWITZ suggests an approach opposite that of the Maharsha. The Gemara in Bechoros (52a) explains that although a normal lender may collect from the increase ("Shevach") that accrued to the borrower's field (that was designated as security for the loan) even *after* the borrower sold the field, a Kesuvah, on the other hand, may only be collected from the property as it was worth at the time the husband died, before the heirs inherited it. The reason is because the Chachamim were lenient to the family of the husband with regard to the collection of the Kesuvah. This implies that if the Halachah of Kesuvah would be mid'Oraisa, then the Kesuvah *could* be collected from the Shevach of the property as well.

Rebbi Meir, who indeed holds that the Kesuvah is d'Oraisa (Kesuvos 56b), says that we evaluate the fully grown fruits, *including* what grew after the death of the husband. The Chachamim, though, hold that Kesuvah is d'Rabanan, and therefore they say that the Peros are designated to the Kesuvah only in the state in which they were at the time of the husband's death.

According to this, both the expressions "Shelo" and "Shelah" are true. The Peros, after they are grown, are partially the Yavam's and partially the Yevamah's. Hence, the Tana is justified in saying "Shelo," meaning that part of the fruit (that ripened after the husband's death) belongs to the Yavam. When Reish Lakish says that the Chachamim mean "Shelah," he means that the other part of the Peros (that which grew before the husband's death) belongs to the Yevamah. Reish Lakish is not changing the wording of the Mishnah, but he is explaining the Mishnah. (We often find often that "Teni" does not necessarily mean to emend the Mishnah, but rather to explain it; see Tosfos in Kesuvos 4b, DH u'Mi; Yoma 40a, DH Ha; Bava Kama 49b, DH v'Teni.)

(d) We could suggest another explanation that will conform with Rashi's explanation that Rebbi Meir and the Chachamim are not arguing. When Reish Lakish says "Teni," he does not mean to change the Mishnah. If the Mishnah's wording, "Shelo," was an error, then why did the Gemara bother preserving the mistake and then changing it? Rather, the Mishnah might mean as follows.

When the Chachamim say that the attached Peros are "Shelo," they do not mean that they belong to the Yavam. They mean that they belong to *his deceased brother*. Since they are part of the deceased brother's property, they are designated for the Kesuvah (to *her*, as Reish Lakish says)!

The Chachamim are telling us that the Peros belonged to the deceased brother in order to explain the reasoning behind their argument with Rebbi Meir regarding detached Peros. Why is it that the Chachamim do not allow the woman to collect her Kesuvah from the Metaltelin that the Yavam inherits? The reason is because the obligation to pay the Kesuvah rests on the woman's husband, and not on those who inherit his property. Whatever they inherit becomes their money and no longer belongs to the deceased husband, and therefore it cannot be designated for the payment of the Kesuvah. Only when there is a Shibud on the property does the property remain reserved for the payment of the Kesuvah (or repayment of the loan) even after the man's death. Since there is a Shibud on it from the time that the husband was alive, it is as if the woman is collecting it from her deceased husband and not from the heirs. Metaltelin, mobile property, on the other hand, can have no Shibud upon them, and therefore she cannot collect her Kesuvah from them since such property would be coming from the heirs and not from the husband.

This is what the Chachamim mean when they say that the attached Peros are "Shelo," they belong to him -- the Peros that are attached are coming from the deceased husband and therefore they can be used for the Kesuvah. In contrast, the detached Peros do not come from the deceased husband but from his heirs, and thus they are not reserved for the Kesuvah.

This explains the reasoning for why the woman may collect even from *detached* Peros if she took possession of them before the Yavam, as the Chachamim in the Mishnah rule. Rashi (80b, DH Kol ha'Kodem) explains that the Yevamah only gets the Peros if she takes them before her husband dies. Since she took possession of the Peros while her husband was alive, the payment of the Kesuvah would be coming from the husband and not from his heirs, and therefore they are considered to have been set aside for her Kesuvah. (M. Kornfeld)


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